8th District - Year in Review

The 8th District handed down 1023 decisions last year, 223
fewer than in 2011. That was in keeping with
a general decline in Supreme Court and appellate cases, about 800 fewer than
the year before. The 8th still did the
heavy lifting, issuing about over 300 more opinions than the next-highest
volume court, which was the 5th District, with 691 cases.

That's the quantitative result. What's the qualitative analysis? Let's take a look.

The court continued to wrestle with the issue of allied
offenses in the wake of the Supreme Court's 2010 decision in State v. Johnson. Most of the wrestling had to do with how
to handle the issue when the case had been resolved by plea, rather than
trial. Given Johnson's focus on the defendant's conduct, a plea doesn't afford much factual basis for determining this
question, especially where neither the parties nor the trial judge had
addressed it. That means plain error
review, but that's not a problem, because the Supreme Court's held that imposition
of sentences for offenses which should be allied is plain error. The 8th has vacillated
on how to handle this: in State
v. Lindsey, it held that the defense's failure to offer any evidence on
the issue below precluded a finding of plain error, but subsequently backed
away from that in State
v. Baker, and in State
v. Maddoxheld that the State bears
the burden of providing sufficient evidence at the sentencing hearing of how
the offenses occurred in order to determine whether they merge. The lesson here is that everybody - the trial
judge, the defense attorney, and the prosecutor - has to pay more attention to
this. Even a stipulation that the
offenses aren't allied might not be enough; as Baker notes, this "merely supplants an allied offense issue with an ineffective assistance of counsel
one -- for mistakenly advising the defendant to agree to multiple sentences for
a single crime."

Sentencing is
also the subject of several other decisions, notably State
v. Bonness, where the court reversed as being excessive a 52½-year
sentence for a former policeman who pled guilty to attempted rape and multiple
counts of child pornography. As I
detailed here,
the 8th's jurisprudence on disproportionality has been something other than a
seamless web, and Bonness lent little
clarity to it. (Note: on the remand, Bonness was given 32 years;
the case is on appeal again.)

Of course,
disproportionality as a legal concept has faded in significance since passage
of HB 86, and its reinstatement of the requirement that judges make findings of
fact before imposing consecutive sentences.
Again, the court's jurisprudence here is a bit muddled, but no more so
than that of other districts, the problem centering around everybody's belief
that the new law dispenses with the requirement that the judge provide reasons for
his findings. (I provided an argument contra here.) For the most part, the court has been fairly
consistent in requiring the judge to make the findings required by the statute. Not necessarily using the exact language, the
court noted in State
v. Blackwell, finding that the judge there said enough about what a bad
person Blackwell was to conclude that she'd made the required findings.

Another major feature of HB 86 was
the "mandatory probation" provision - a requirement that one convicted of a
fourth or fifth degree felony receive community control sanctions in most
cases. That raises several questions, as
I pointed out here and here, such as
whether the "lookback" period of two years applies to all felonies or only
violent misdemeanors, and whether the provision is constitutional at all. The court didn't address any of those issues,
although it might have in State
v. Taylor, instead concluding that HB 86 didn't apply, wrongly using
the offense date rather than the sentencing date as the relevant one. One other issue raised by HB 86 was whether
the reduction in threshold - the amount necessary to charge a felony was raised
from $500 to $1,000 - meant that the defendant was entitled to a misdemeanor
classification as well as a misdemeanor penalty. In State
v. Steinfurth, the court rejected the reclassification argument, but
the better reasoning, that the defendant is entitled to the lesser
classification, is found in the 5th District's decision in State
v. Gillespieand the 2nd's in State
v. Arnold.

One of the most helpful decisions for appellate lawyers was In
re C.T. One of the difficulties
in appealing from a bench trial is that the appellate court will presume that
the trial judge disregarded inadmissible evidence. In C.T.,
the court held that doesn't apply when the judge allows evidence in over
defense objection.

As for substantive law, lawyers handling "aggravated shoplifting" cases -
those where a defendant is confronted by a security guard, pushes him aside in
an attempt to escape, and winds up with a robbery charge - should look to State
v. Millerand State
v. Griggs. In Griggs, the defendant had grabbed the
victim's cellphone away from her, and the court found this was insufficient to
establish the "force or threat of force" element of robbery. In Miller,
the court reversed a conviction of assaulting a police officer; the defendant's
"flailing around" in reaction to the officers' attempt to arrest him, which had
resulted in one of the officers being kicked in the shins, wasn't sufficient to
prove that the defendant had "knowingly" attempted to inflict harm. And anyone handling a case involving an
allegation of rape under the substantial incapacity theory needs to take a look
at State
v. Rivera, where the court finds evidence of a 15-year-old's consumption
didn't equate to intoxication, let alone incapacity.

As usual, the court saved its best work for 4th and 5th
Amendment cases. In State
v. Arguelles(discussed in detail here),
the court held in essence that an
officer's "repeated asking" if he can conduct a search despite
"repeated refusals" can, in and of itself, place the defendant in
custody, and thus require Miranda warnings. That complemented the result in State
v. Dieckhoner. The police had
stopped Dieckhoner for a busted headlight, told him to fix it, and then asked "by
the way, do you have anything illegal, guns, knives, bombs, anything?"
Dieckhoner said no, and the cop asked if it would be okay to "check his
person." By this time another cop had arrived on the scene, and was
standing five feet away. Deickhoner agreed to be patted down, and a small bag
of cocaine was recovered from his pocket.
Although the trial court had found Dieckhoner had consented to the
search, the 8th reversed, finding this was merely "submission to a claim of
lawful authority."

And in State
v. Woods, the court gave the State as big a smackdown as I've seen,
affirming the grant of a motion to suppress in a case involving an obviously
bogus inventory search, noting,

This is a classic example of a police officer's intentional use of an
unlawful traffic stop, under a questionable codified ordinance, for the sole
purpose of conducting a fishing expedition for evidence of another crime, and a
tailored script at the motion to suppress hearing to justify the stop and
subsequent searches.

March 25, 2015An innocent man
Did a prosecutor send an innocent man to death row?

March 24, 2015What's Up in the 8th
Joinder of offenses and defendants, discovery non-violations, and yes, Virginia, you can get probation on the underlying offense even if there's a gun spec

March 23, 2015Case Update
A few years ago, I served as a moot court judge, and what I learned from the experience is that I don't want to be a moot court judge again. The issue was whether a state which allowed private groups...

March 19, 2015Thursday Roundup
The odds of a death sentence being carried out, residency restrictions for sex offenders get tossed out in California, and the Facebook defrauder goes on the lam

March 17, 2015What's Up in the 8th
What a defense expert on eyewitness identifications can say, what a judge can do if you commit a crime while on PRC, and when a defendant "purposely avoids prosecution"

March 16, 2015Case Update
Judges berating jurors, and it turns out that all you need to do to win appeals is raise "winning issues." Who knew?